Gill v. Weaver

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Gill v. Weaver, 1 Dev. 41, 21 N.C. 41 (N.C. 1834)
• Decision Date: 31 December 1834
• Parties: ALLEN GILL, et al. v. AMOS WEAVER, et al.

1 Dev. & Bat.Eq. 41

21 N.C. 41

ALLEN GILL, et al.

v.AMOS WEAVER, et al.

Supreme Court of North Carolina.

December Term, 1834.

A legacy to a wife “until my youngest living child comes of age,” and “if she dies before my youngest living child,” &c. then “to be equally divided among my living children,” but if she lives until my youngest child, & c. “she shall have an equal share of my estate as is mentioned,” does not vest in the children until the youngest arrives at full age, or until the death of the wife.

WILLIAM GILL died in the year 1797, having first duly made and published his will, in which, after providing for the payment of his debts he proceeded as follows. “I bequeath to my wife all my personal and real estate, to have the sole use of until my youngest living child comes of age as is prescribed by law, provided she my wife lives. If she dies before my youngest living child comes of age, then all my property both real and personal shall be equally divided among my living children male and female except Judith Donaldson my eldest child; I have already given her a full share. It is my desire that if my wife does live until my youngest living child comes of age she shall have an equal share of my estate as is mentioned.”

The widow of the testator lived until the youngest child who survived him attained full age. But one of his daughters, Susannah Tomlinson, died before that time leaving issue. The object of the bill was to obtain the opinion of the Court, whether the share of Mrs. Tomlinson survived to her personal representative.

Nash, and Pearson, for the administration of Mrs. Tomlinson .

Devereux, contra .

RUFFIN, Chief Justice.

The inclination of the Courts is to construe legacies, and especially provisions for children, to be vested and transmissible if the words will possibly admit of it; and they are most reluctantly held to be contingent. Hence the general rule is, that if a legacy be given to two or more, or the survivors or survivor, equally to be divided between them, the period to which the words are referred, is the death of the testator. If the gift be immediate, that is to say, without any previous interest in the subject to another person, there is nothing to denote any other period but that at which the will first speaks. At that time the legacy vests, and the division is made or ought to be made, and the persons then answering to the description must take their shares absolutely, or there would be survivorships indefinitely until all comes to the last survivor, which is inadmissible without the most unequivocal words. But if a previous life estate be given, the period of division is the death of the tenant for life; and the survivors at that time take the whole, either as not having vested before, or if vested at the death of the testator, as being divested by the death of one of the legatees, and surviving to the others. Upon this last point, however, the cases are not all reconcilable. It is not surprising that they should not be. The question does not turn on words having a technical and precise legal meaning, like heirs or the like; but the Court is to determine upon the apparent intention, to be collected both from the particular disposition, and the other parts of the will; and the context varies with almost every will. Hence there are numerous cases, in which the survivorship is sometimes referred to the death of the testator, notwithstanding a previous interest to another, and sometimes to the period of distribution. It is not proposed to enumerate or to classify those cases; because it is thought upon the whole of them the principle is indisputably established, that if upon the whole will, the certainty of the shares, in their amount, or rather the proportion of the estate to which each legatee should be entitled, could not be conclusively determined upon the death of the testator, then the...